Thu February 7, 2013

With Pot Legalized, States Enter Uncharted Waters

This is TALK OF THE NATION. I'm Neal Conan in Washington. When Colorado and Washington state voted to legalized recreational marijuana last November, they moved their states into uncharted waters. It's one thing to say possession of an ounce of pot is legal; it's another to set up a way to regulate this new business.

From seeds to sales, how do you control quality and safety? How does this affect cops and parents and teachers? Does a no smoking sign mean no smoking anything? And then there's federal law, where marijuana is still a class A narcotic. Can a pot distributor open a bank account? What does a marijuana retailer say on his tax return?

If you live in Colorado or Washington, we want to hear from you. What's changed? Our phone number is 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION. Later in the program we continue our Oscar Docs series with the co-directors of "Five Broken Cameras."

But first normalizing marijuana. Jack Finlaw is chief legal counsel to Colorado Governor John Hickenlooper, co-chair of the Amendment 64 Task Force. They're in the process of hammering out new policies to govern the sale and legal use of marijuana, and he joins us now from his office in Denver, and welcome to TALK OF THE NATION.

JACK FINLAW: Hi Neal.

CONAN: Your group has until the end of the month, as I understand it, to pass along its recommendations to the governor. How's it going?

FINLAW: Well, we're hard at work. We've been working since mid-December. We have a 24-person task force that includes folks from law enforcement and folks who are advocates for marijuana, folks from the marijuana industry here in Colorado and all sorts of other people that are hard at work looking at the criminal law issues, the regulatory framework that we're trying to put together and some of the consumer and public safety issues, as well.

CONAN: What's proved easy, and what's proved hard?

FINLAW: One thing that's proved easy because we've been looking at it in this state for a couple years is a new law to make clear that driving under the influence of marijuana is not lawful. So we already have a bill making its way through our legislature to make clear that if you have five nanograms of THC in your blood system, you are presumed to - there's a presumption that you are driving under the influence of marijuana.

It's a rebuttable presumption so that people can challenge that in court, but that standard is now soon to be Colorado law.

CONAN: And what's proved difficult?

FINLAW: Well, you know, trying to figure out, thread the needle between enacting into law and regulation something that the voters wanted that is still illegal under federal law. We're trying to read the federal tea leaves because we haven't had any direct direction from the federal government. We've been in conversation with the Department of Justice and our local U.S. attorney.

They've been helpful, they've been friendly, but they haven't given us any specific guidance. So we're trying to figure out how to do the regulation and enforcement piece, how to set up the structure that will pass federal muster.

CONAN: I'd assume one of the things that they would be concerned about is if legal Colorado pot suddenly started flooding across your borders.

FINLAW: You know, that's one thing that Attorney General Holder has made clear to both our governor and the governor of Washington state, that they're going to be very focused on making sure that there's no diversion outside of Colorado or Washington state of the marijuana that's grown and sold here.

So right, we are looking at potentially limiting sales to Colorado residents, although we've not made a decision on that. It's likely, though, that owners of the grow operations and the retail stores will be limited to Colorado residents.

CONAN: And grow operations, is it going to be if you grow it, you can sell it, or how's that going to work?

FINLAW: Well, you know, we have one of the most robust regulatory regimes among all the 18 states that allow medical marijuana, and we have a vertical integration model where you have to have common ownership between the grow operation, the distribution operation and the dispensaries. And so we're really struggling right now to look at whether we have that same integrated ownership model for recreational model, or we loosen it up and allow other entrants into the marketplace.

So we haven't made a decision on that, but one thing's for sure: Whether there's common ownership or multiple ownership, we will have lots of technology in place to make sure that from seed to sale, we're tracking it, there's video surveillance in all of the stores, as well as in the grow operations, and we have all kinds of checks and make sure that no criminal elements are involved in the businesses.

CONAN: And in the process of that robust medical marijuana industry, you must have reached some ability to, well, quality control and measuring safety, that sort of thing.

FINLAW: That's right. We're looking at - you know, one of the problems is there's a lot of debate among the scientists who look at marijuana and the levels of THC and even how, for example, hash is produced. There's really a division in the industry between those who do it in a green, you know, sort of water-processed way and those who produce it using chemicals like butane.

So our public health department is going to look at perhaps putting in place some rules that will limit the way that sort of product is produced. That's the hash that's created to go into the butter or the oil that then is used to create the infused products.

CONAN: And alcohol, it's pretty simple: X percent alcohol, that's, what, typically six, seven percent for a beer, something like that, you can make your judgments on that. Will there be labeling for marijuana?

FINLAW: Yeah, actually the constitutional amendment requires labeling. The question is what to put on the label. How many dire warnings do we put on the label for young people, for example? Is it similar to the packaging that we see on cigarettes?

Then are there issues about, you know, how it's produced? Is it pure? What's the THC level? That's a big controversy. We've heard that from - some folks in the public say you can't measure THC because it changes constantly as you deal with the product.

So there's a lot of, frankly, some practical, scientific challenges, as well as the public policy issues of trying to both be very clear about the dangers of the product without disrespecting the fact that Coloradans want this product to be in the marketplace.

CONAN: We want to hear from people in Colorado and Washington state. Parents, if you're in law enforcement, educators, mental health professionals, what's changed now that marijuana, recreational marijuana, is legal? 800-989-8255. Email talk@npr.org. And I assume, Jack Finlaw, one thing that would say the same, if there's no smoking allowed, there's no smoking allowed.

FINLAW: You know, that's - that is right. Fortunately the constitutional amendment makes clear that marijuana still will not be allowed to be consumed openly or publicly or in a manner that endangers others. So to the extent that there's a sense that, you know, cigarette smoke or marijuana smoke would be endangering the health of others, it won't be allowed in public places.

CONAN: What about parents who want to smoke at home, and they have kids?

FINLAW: You know, I think that people can do pretty much what they want in the privacy of their own home unless there are issues with respect to, you know, family law issues, perhaps. One of the issues that's been discussed a lot in our task force is what is the implication of one parent who has a grow operation in the basement or is using marijuana in front of the kids where the other spouse or the other partner does not approve of that. Who gets to make the decision?

CONAN: And if there should be a divorce, who gets custody?

FINLAW: Absolutely.

CONAN: There are also, as you mentioned, a lot of concerns with the federal government. One of them is banking. Banks are regulated by the federal government.

FINLAW: We've already looked at that issue, and we've had a lot of creative minds focused on how we can get around the federal banking regulations because, you know, my experience is that these folks that have established these businesses are really entrepreneurial, creative types who are providing jobs for people, but they're having a problem making payroll.

They have to pay people in cash as opposed to having the typical payroll checks, since they can't bank. But we have not found a way around the federal banking laws, and I think that our task force is merely going to recommend that our congressional delegation and our governor and state legislature work with the federal government to try to find a solution.

CONAN: And this must have come up with medical marijuana, as well. What do you tell the feds on your income tax returns? If you put your actual profession down, it's - you're violating your own Fifth Amendment rights against testifying against yourself.

FINLAW: That's right. I understand that there is, you know, the typical business exemptions that you get to claim. If you're operating a different type of business, you're not able to do that on your taxes.

CONAN: Let's get some callers in on the conversation. Again, we want to hear from listeners in Colorado and Washington. What has changed now that recreational marijuana is legal? We'll start with Tamara(ph), Tamara with us on the line from Spokane in Washington.

TAMARA: Hi, thank you. I'm an educator in Washington, and one of the questions that I have is the effect of secondhand marijuana smoke on a student who may not be smoking at home. Often we get students at school who of course smell of the cigarette smoke of their parents. How is this going to affect the children that are around the smoke of the marijuana in terms of our education lives?

CONAN: And what grades do you teach?

TAMARA: I teach K through six.

CONAN: Well, I don't think you're going to have too much marijuana use by your students, but obviously later in high school and certainly in college, a lot of college students over the age of 21, but...

TAMARA: Yeah, I'm not speaking so much about their own personal use. I'm speaking about the use in the home, where there might be secondary smoke coming from their parents who might be smoking more recreationally, as we often smell the secondary smoke on the students that are - there's the cigarette smoke. So is there an effect of secondary marijuana smoke on children in the home where marijuana is smoked regularly?

CONAN: Jack Finlaw, has that come up?

FINLAW: Well, you know, we've talked about that, and we've got literally a file full of scientific studies showing the really strong adverse effects of marijuana, at least of smoking marijuana or ingesting marijuana among particularly young people whose brains are still in development. So I think that there is a legitimate cause for concern about secondhand smoke.

But again, the government can only do so much. I think a lot of that really is going to have to look towards parents using good judgment.

CONAN: And would there be a public education aspect of this? I presume you're going to have pretty stiff taxes on this marijuana.

FINLAW: Yeah, we are planning a very aggressive public education program funded out of money that's generated from the various taxes. The marijuana will be subject to our sales tax, but also the voters have indicated they'd like to see an excise tax imposed in addition. That vote - there has to be a second vote because of Colorado laws to impose a tax. We have to go back to the voters, which I expect we will do again in November of this year.

CONAN: Tamara, thanks very much for the call.

TAMARA: Thank you.

CONAN: We want to hear again from people in Washington and Colorado. What's changed in your life and your work now that marijuana's been legalized? 800-989-8255. Email us, talk@npr.org. After a short break, we'll talk with a member of the Seattle Police Department's Criminal Investigations Bureau. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan. With recreational pot legal in Washington and Colorado, those states are now trying to figure out exactly how this new industry will work. To that end, Washington posted an unusual help wanted ad for an official marijuana consultant.

The ideal candidate would advise on the best ways to grow, distribute, test and regulate weed. Specifically the Liquor Control Board, which opened up this position, outlines four categories: product and industry knowledge; quality standards and testing; usage and consumption validation; and regulation.

Dozens of hopeful job-seekers, some reportedly dressed professionally, others in hemp necklaces and flannel, expressed interest in the position yesterday in Tacoma. That's just one frontier in the new normal, where pot is legal.

So if you live in Colorado or Washington, what's changed? 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Even as lawmakers and their advisors, like our guest Jack Finlaw, chief legal counsel to Colorado's Governor Hickenlooper, work out details, and as Washington searches for its marijuana expert, law enforcement officers already confront a new reality, one where smoking pot is legal. Assistant Chief Jim Pugel is with the Criminal Investigations Bureau of the Seattle Police Department and joins us now from member station KUOW there. Nice to have you on TALK OF THE NATION.

JIM PUGEL: Thank you very much for having me.

CONAN: And though marijuana was legalized in Washington state in December, I understand recreational smokers have been pretty low on the priority list there in Seattle for a few years now.

PUGEL: Yes, as a matter of fact back in the early 2000s through a city referendum and initiative, voters said that the enforcement of any marijuana law would be the lowest priority in every law enforcement violation.

CONAN: So effectively, in Seattle at least, not a whole lot has changed.

PUGEL: Not per se. Actually this initiative has given the police department and the officers who work the street a little bit more clear, black-and-white guidance on what is legal and what's not. We still are dealing with the medical marijuana issues, which we had dealt with for the last, oh, two years.

But this really clarifies how much a person can carry, where they can display it and where they can use it.

CONAN: And that kind of clarity is helpful, you say.

PUGEL: Absolutely.

CONAN: And I know you were involved in helping to craft the language of the new law. What were you most concerned about?

PUGEL: Well, I in fact wasn't one that crafted it, but I was consulted, and we worked very closely with the ACLU and other people. And we knew that there was a pretty large groundswell out there that wanted it legalized. Whether one is for smoking it or possession or growing or not, there was too much - the situation was too clouded out there.

No one knew really what the rules were, and they didn't - those who don't agree with it still wanted some rules around it. So I think that that was the most important part about the initiative was that they were able to craft the language so that it drew a pretty sizable majority of the voters statewide to allow it to occur.

CONAN: And one aspect of the measure there in Washington state was - we heard just a few minutes ago from Jack Finlaw that they're already working on legislation there to define what's intoxicated driving. That's already part of the law there in Washington state.

PUGEL: Yes, police officers can only stop a person who's operating a vehicle based on their behavior. So just like if a person has been using alcohol or has been abusing or under the influence of a legally prescribed drug, they are still going to stop the driver based on how they're operating the vehicle.

Once a person rolls down the window or otherwise engages with the police officer, the police officer, she will smell or otherwise become aware of alcohol or observe certain physical characteristics or the way that the person is speaking or perhaps even smell burnt marijuana.

From that point on, they will conduct what we call field sobriety tests and verbal interviews to determine and investigate further whether that person is in fact under the influence of any drug.

CONAN: But to get an actual result, again liquor you can do the breathalyzer. You'd have to do a blood test for marijuana.

PUGEL: Yes, we would. And we would have to ask permission of the person to do a blood test. They could absolutely refuse, although the rulemaking process has not been completed. We're not sure what the result of a refusal to give a blood test will be. But that would be up to the Department of Licensing.

The individual operator of a vehicle, though, has to remember that one police officer does not need a physical or a blood test or a breath test to obtain a conviction of driving under the influence. Quite often, people do refuse to either give a breath or blood test, and we can get a conviction or a successful prosecution based on the behavior, based on the field sobriety tests, but also a lot of cars now are equipped with a dash-cam video.

And when you present the video to a jury or to a judge, and they can see the behavior, hear what the person was saying, seen how they were physically behaving, that alone sometimes can get a conviction.

CONAN: Jack Finlaw, I wanted to turn back to you and put an email question we got from Martha Jones(ph), and that was - as you know, during the campaign, one of the arguments used in favor of legalization was that police should focus on more serious crimes, other kinds of crimes. What about amnesty, she writes, for those in jail already?

FINLAW: You know, we have not had any conversations about granting amnesty to those who were convicted under prior laws that were in effect. I do think that the data shows that very few people are incarcerated purely for possessing less than an ounce of marijuana. Usually, it's an add-on charge to other criminal charges.

CONAN: Let's see if we can get a caller in. This is Ean. Ean's on the line with us from Denver.

EAN: Hello, how are you?

CONAN: Go ahead, please.

EAN: Well, my name is Ean Seeb. I own and operate Denver Relief, which is one of Denver's longest, continuously running medical marijuana centers. And we are not really seeing too much of a change now, in regards to sales, as a result of Amendment 64 passing; and really don't have any fear as to losing our business as a result of adult use coming into play, in Colorado.

CONAN: Would you be - are you considering getting into - branching out into recreational sales as well?

EAN: We're absolutely willing to consider it. We are not going to be the first to do so. We'd like to see what type of federal response comes into play. But if there's an opportunity for us to continue providing medical marijuana to our patients, and to the people that have built our business, while still providing to any adult over the age of 21 who wishes to purchase, it's something that we would absolutely consider.

CONAN: Jack Finlaw - again, are you going to allow sales of medical marijuana and recreational marijuana from the same facility?

FINLAW: I think we're thinking that there can be common ownership, but that there would probably have to be separate premises, similar to the way we regulate alcohol; that if you're doing one sort of business, you have to have a separate premise for a different sort.

The way medical marijuana dispensaries operate today, there's really strict access limitations. You have to have a medical marijuana card; it has to be current. So even to get inside a dispensary, there has to be checks. I would imagine that a recreational marijuana store would be open to the public. The other distinction is that medical marijuana is available to people under 21, whereas recreational marijuana will only be available to people 21 and older.

CONAN: Does that make sense to you, Ean?

EAN: Absolutely, it does. And I think that they can both be done - it doesn't necessarily need to be mutually exclusive. We could absolutely provide for patients that are between the ages of 18, 19 and 20, as well as providing to all adults over the age of 21. Whether or not we - whether or not a separate facility is going to be needed, remains to be seen. But Jack is absolutely right that there are - there are some nuances to work out. But given the regulation that we are working under right now, I and my business partner certainly - or my business partners and myself certainly don't feel as though it would be difficult to follow those new regulations.

CONAN: All right, Ean, thanks very much.

EAN: Thank you for having me.

CONAN: Let's see if we can go next to - this is Rebecca(ph), Rebecca from Boulder, Colorado.

REBECCA: Hello, how are you?

CONAN: I'm well, thank you.

REBECCA: This is a wonderful discussion because it really shows the complications of this issue. So I'm really glad to hear it, and I wish more people could be, you know, privy to this.

CONAN: Well, what are the complications in your life?

REBECCA: None really. What - how this really affects me, I think, is how I communicate to my child, what - how am I going to discuss with him the difference between or the similarity between marijuana as a drug and, like, for instance, alcohol as a drug and teaching him in - you know, things in moderation.

In my mind, alcohol is actually a worse drug than pot. And where I come from in Boulder, Colorado, people very openly smoke pot. They very openly raise pot. You know, it's a very common thing around here. And so I don't know. I think this is - I think it's really positive, actually, to have this all being, you know, more open now and less black market and less under the radar.

CONAN: There are any number of kids who first see alcohol being used when they see their parents using it. I assume that's now going to be the case with marijuana too.

REBECCA: Well, I think it already is the case. I mean most people that I know who have children in this area very openly smoke pot around their kids. So I don't think it's really going to change all that much necessarily, you know, what happens within the house. I mean there will be some changes, you know, obviously what happens outside the house, but you know, teenagers, they're very clever at getting their hands on alcohol and pot now.

And I don't - I think it has a lot to do with the mindset of how the kids are raised and what their parents teach them and how the kids are and what they do in their experimental stages of their life. And so, if anything, it's going to take a little bit of the stigma off of pot, and that, I think, is absolutely very helpful for it.

CONAN: Rebecca, thanks very much for the call.

REBECCA: You're welcome. Bye-bye.

CONAN: Here's an email that we have. This is from Giraud(ph): How will this new law on marijuana affect work policies that have drug-free policies?

Jack Finlaw, is that something you're looking into?

FINLAW: Yeah, our task force has already dealt with that and looked at the plain language of our new constitutional amendment that specifically says that nothing in the - in this new law will change the relationship between employers and employees and the ability of employers to have policies that provide for not just a drug-free workplace, but that could, you know, restrict the use of marijuana by employees even in off hours.

CONAN: Jim Pugel, you mentioned that because of the city ordinance, this didn't change things much in Seattle. I assume you speak with colleagues from elsewhere outside the big city.

PUGEL: Oh, yes, we do. In fact, we've been in constant conversation with folks both in Eastern Washington, Western Washington and certainly the Association of Sheriffs and Police Chiefs.

CONAN: And is there more of a culture shock there, do you think?

PUGEL: I think you'd have to take it from one municipality or county to another. If you look at the way that the vote was recorded throughout the state, it was very balanced on the west and the east side, and Washington State is characterized by a little bit more conservative to the east of the Cascade mountain range and a little bit more liberal to the west.

But if you look at the balance of this vote, the people spoke pretty balanced throughout the state as far as give it a try, let's legalize it, but put some reasonable rules around it.

CONAN: That's Jim Pugel, who's assistant chief of the Criminal Investigations Bureau at the Seattle Police Department. Also with us, Jack Finlaw, co-chair of the Amendment 64 Implementation Task Force. He's the chief legal counsel to Governor John Hickenlooper there in Denver, Colorado. You're listening to TALK OF THE NATION from NPR News.

This email from Nan(ph) in Colorado: I'm very concerned about the legalization of marijuana. My 16-year-old is hearing that pot was legalized because it is not harmful to consume and that alcohol is far more dangerous. Legalizing pot and not putting out all the facts about the effects of pot use, especially on children's brains, is hugely irresponsible. It is so disappointing to see medicinal pot shops on every corner here already, close to schools, neighborhoods and daycares. And now we will have even more sources available to our children as we add recreational pot shops.

And Jack Finlaw, you mentioned regulations in effect on medical marijuana. Those are seen by - well, it's a wink and a nod in a lot of places, isn't it?

FINLAW: Well, you know, we have very strict controls over who can have access to medical marijuana. Also, thanks to some guidance from our U.S. attorney, any medical marijuana dispensaries that were located too close to schools or other places where young people gather have been closed down.

And I expect that our rules on recreational marijuana stores will also have limits as far as, you know, where they can be located, how many shops can be in any particular community. It'll be a joint partnership between the state regulations and local governments. And also, local governments in Colorado are permitted to opt out of legalization, and they can prohibit it in their towns or their counties.

CONAN: Let's go to Brian, Brian with us from Seattle.

BRIAN: Yeah. I'm a teacher in - at an alternative school, and we've had - you know, I've had conversations throughout the years with my students about marijuana, most of the time before legalization. It was fairly oblique references to use or, you know, use in the past, but never anything present. But then after the legalization, it's been - there's been a lot - there's been a change in the climate of how those conversations go.

It's gone from kind of references to other people and other things, and it's become a little bit more personal. And I feel like it's been a good step because we've been able to talk more about the effects on the - on learning, on, you know, the dopamine levels in your brain.

And I also have been really encouraged because I feel as though there's a legal hypocrisy in terms of our treatment of alcohol and marijuana. They are not the same but they are similar. They're not like heroin and some of the harder drugs.

And I feel like, you know, this shift kind of towards a more calm approach to marijuana has enabled students to really look at it less as a rebellion and more as a - more as something they have to consider for their future - how they're going to use it, you know, what effects it's going to have on their learning, what effects it's going to have on their life - because it does affect them, they know it.

CONAN: Mm-hmm.

BRIAN: The question - sorry.

CONAN: Go ahead.

BRIAN: The question I have is, is there any part of the laws that allows for use inside the home much the same way that alcohol is considered now, where inside the family, it's, you know, largely unregulated and there's no legal ramifications for that?

CONAN: Jim Pugel, is that your understanding?

PUGEL: Yes. What a person does inside of their home, as long as they're abiding by the amounts, the quantities that are allowed by the initiative, that is fine. Certainly when a police officer enters a residence for whatever reason - a missing person, a domestic violence call, a burglary - if they come across, even before marijuana was legal, if they come across a situation that's harmful or an environment that is dangerous to children, we are required to document that. And that didn't - that really doesn't matter whether it's alcohol, whether it's a chemical or poor food storage or marijuana. We are looking out for the safety of everyone regardless of what the harm could be.

CONAN: Bryan, thanks very much. And just a quick question. Any evidence, well, Jim Pugel, that people are smoking more pot now?

PUGEL: Not from either anecdotal or from the reports of police officers. We regularly kept a log of every single report or incident that marijuana was mentioned in, and to date - it's only been two and a half months - to date, though, we have not seen an increase in complaints about marijuana, coming across illegal grow farms, or anything else that we were previously reporting.

CONAN: Well, early days yet. We will be checking in to see how things continue to evolve. Jack Finlaw, thanks very much for your time today.

FINLAW: You're welcome.

CONAN: Jack Finlaw, chief legal counsel to Governor John Hickenlooper there in Denver, and Assistant Chief Pugel with the Seattle Police Department. Thanks to you too.